Citation Nr: 0600763
Decision Date: 01/10/06 Archive Date: 01/19/06
DOCKET NO. 04-35 912 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
low back disability.
2. Entitlement to service connection for a low back
disability.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Wright, Counsel
INTRODUCTION
The veteran had active service from July 1953 to July 1957.
This appeal comes before the Board of Veterans' Appeals
(Board) from an August 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon. In this decision, the RO determined that the veteran
had not submitted the requisite new and material evidence to
reopen a claim for entitlement to service connection for a
low back disability.
A hearing was held before a traveling Veterans Law Judge
(VLJ) from the Board, sitting at the RO, in June 2005. The
VLJ that conducted this hearing will make the final
determination in this case. See 38 U.S.C.A. §§ 7102(a),
7107(c) (West 2002).
The issue of entitlement to service connection for a low back
disability is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Service connection for a low back disability was denied
in an October 1997 rating decision. The appellant was
informed of the determination and of the right to appeal.
The appellant did not appeal within one year of date of
notification.
2. The evidence added to the record since the October 1997
decision is not cumulative or redundant of previously
reviewed evidence, and relates to a previously unestablished
fact.
CONCLUSION OF LAW
The October 1997 rating decision denying service connection
for a low back disability is final. New and material
evidence sufficient to reopen the claim has been submitted.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
All relevant facts regarding the issue of new and material
evidence decided below have been properly developed and no
further assistance to the appellant is required in order to
comply with the duty to notify and assist. A thorough review
of the claims file reveals that the development conducted by
VA in this case fully meets the requirements of 38 U.S.C.A.
§§ 5103, 5103A; 38 C.F.R. § 3.159. In any event, based on
the completely favorable decision discussed below, the Board
finds that any failure in VA's duty to notify and assist the
appellant regarding his claim of new and material evidence is
harmless. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Submission of New and Material Evidence
The veteran filed his claim for entitlement to service
connection for a low back disability in April 1997. He
submitted statements in which he claimed that his current low
back pain and disability had continuously existed since an
in-service injury. He asserted that he had injured his low
back during active service when he was attempting to load a
55-gallon drum of motor oil (alleged actual weight of 535
pounds) when he lost control of the drum, fell to the ground,
and the drum rolled over his back. The veteran noted that he
reported this injury to sick call and returned to sick call
thereafter two to three times a week for five to six months.
Finally, he quit reporting to sick call when a military
physician only prescribed the use of wooden slats under his
bed mattress.
The veteran asserted that his post-service medical records
did not indicate histories of continuous back pain because he
had to claim a new injury during every episode of
exacerbation in order to protect his employment. The veteran
indicated that if he had reported a continual back problem he
would not have been hired for new jobs in manual labor. He
reported that each subsequent incident of stress or trauma to
his back had made his condition worse.
The service medical records reveal that on the Report of
Medical History taken at the time of the veteran's entrance
into active service in July 1953, he did not report any prior
history of back injury, disability, or pain. The examining
physician summarized that there was no medical history of a
fracture, surgery, or serious injury. On examination, his
spine and musculoskeletal system were found to be normal.
A thoracic and lumbar spine X-ray was requested in early June
1954. This request indicated that the veteran had been hurt
playing football two years before, and still had pain. The
X-rays revealed no evidence of old or recent fracture. The
L5-S1 disc was a little thin but there were no secondary bony
changes adjacent to this disc to indicate disc disease. The
impression was "No definite abnormalities in the thoracic or
lumbar spine. Slight thinning of L5-S1 disc which could
indicate disease at this level."
In June 1954, the veteran was referred to a military
orthopedic clinic for a consultation. It was noted that the
veteran complained of pain in the dorso-lumbar region of his
spine for the previous two months. Urinalysis and X-rays
were reported to be essentially negative. The orthopedist
reported that the veteran had a history of back ache for
approximately two years. The veteran claimed that this pain
was constant and interfered with this sleep. The area of
pain was identified with the lower dorsal vertebra. On
examination, the veteran had full range of motion, no muscle
spasm, and straight leg raises were negative. X-rays were
also reported to be negative. The only noted abnormality was
a very mild dorsal scoliosis with convexity to the left. The
examiner commented:
Whatever organic difficulty this patient
may have might possibly be on the basis
of his posture. However, I feel that a
certain functional element must be
present and the motivation is not too
good. I can suggest no further
definitive treatment aside from the bed
board he already has. I have also
suggested the patient be more postural
conscious.
A medical notation of June 1956 indicated that the veteran
had been examined and found qualified for military duty. The
veteran was given a separation examination in July 1957. No
medical history was reported with this examination. The
veteran's spine and musculoskeletal system were found to be
normal.
U. S. Marine Corp Reserve records indicate that the veteran
was given a comprehensive physical examination in March 1960.
He did not report any prior medical history of low back
injury or pain. On examination, his spine and
musculoskeletal system were normal. In August 1960,
September 1960, February 1961, and July 1961, the veteran was
examined and found qualified for military purposes. No
specific findings were made on these examinations regarding
his low back.
A private physician's letter dated in December 1971, and
addressed to an insurance company, indicated that the veteran
"had got along well with no particular problems until
October 29, 1971" when he slipped while carrying steel and
injured his back. He reportedly had some difficulty after
that fall with his back and then reinjured his back in mid-
November 1971. He continued to have back distress.
Regarding the veteran's prior medical history, the physician
commented that he had reported that some years ago in the
course of an "Army physical" he had been told his left leg
was half an inch shorter than the right. He had tried to use
heel inserts, but this did not alleviate his back distress.
The physician noted that the veteran's past medical history
was negative for prior pertinent serious illness, injury, or
operative procedure. On examination, the veteran's leg
length was found to be equal at 35 inches. Lumbar spine X-
ray revealed no evidence of recent or old bony injury. The
articular facets were intact and there was no interspace
narrowing. No diagnosis was reported.
Outpatient records indicate that the veteran underwent
physical therapy in January and February 1972. By mid-
February 1972, the veteran still complained of some soreness,
sharply located at the D11 mid-line area. X-rays revealed no
gross abnormality. The veteran was given an injection at the
appropriate trigger point. The physician determined that
further treatment was unwarranted.
A private outpatient record dated in 1991 noted that the
veteran had "recently finished a SAIF claim involving some
low back problems." A private neurology examination
conducted in March 1991, apparently in connection with a
Workers' Compensation claim, indicated that the veteran had
onset of low back pain after lifting 100 pounds in weight.
He continued to work until February 1991, when his low back
pain returned and included radicular symptoms in his inguinal
area and legs. A myelogram and post-myelogram computerized
tomography (CT) scan of the lumbar spine were negative. The
veteran reported twisting his back just prior to the
neurology examination, which resulted in him becoming
asymptomatic. The veteran also reported "a little low back
discomfort intermittently for many years" that was
attributed to an injury he sustained as a young man. This
low back discomfort had not changed. The impression was a
history of lumbosacral strain with some radiculopathy, which
was now asymptomatic with a normal examination.
In late June 1994, a private outpatient record noted the
veteran's complaints of low back pain for the past "2 weeks
or so." The pain was mild, but suddenly increased in
intensity that morning. He reported that he had injured his
back in the past off and on over the years. The last time he
had a back strain was several years ago and it lasted for
three months. The assessment was lumbar strain with spasm.
A separate private outpatient record dated the next day noted
that the veteran was "now developing low back pain." He
noted there was "some sort of previous history of low back
disorder." However, the veteran attributed his current low
back pain to limping caused by a recent knee surgery. The
examiner reported that lumbar X-rays showed moderate
degenerative changes with disc spaces pretty well maintained.
A lumbar spine X-ray report of the same date noted some lower
thoracic and upper lumbar spondylosis of a non-specific
nature. There was no significant evidence of canal stenosis
or high-grade degenerative changes of the discs. The
impression was spondylotic changes without evidence of a
specific cause for the back pain.
In a rating decision of October 1997, the RO denied the
veteran's initial claim for entitlement to service connection
for a low back disability. It was determined that the
evidence of record failed to establish any relationship
between the current back problems and any disease or injury
during military service. It was also determined that the
evidence failed to show permanent aggravation of a noted pre-
existing back problem. The veteran was notified of this
decision and his appellate rights by letter issued in October
1997. The veteran did not timely appeal this determination
and it is now final. See 38 U.S.C.A. § 7105; 38 C.F.R.
§ 20.200. The veteran's request to reopen this claim was
received by VA in January 2003.
Since the October 1997 decision, the veteran has submitted
statements and provided testimony in June 2005. He claimed
that his football injury prior to military service was a
"mere strain" and not the injury that led to his chronic
low back pain. He asserted that the injury that resulted in
chronic low back pain was his claimed in-service injury when
a 55-gallon barrel rolled over his back. The veteran
indicated that his injury occurred in April 1954 and he
suffered with low back pain until June when he reported to
sick call. He continued to report to sick call once a week
for two or three months. He finally quit reporting for sick
call after being accused of being a "Sandbagger,
Goldbricker." After this, the veteran self-treated his low
back pain with over-the-counter medication.
He claimed that he had not complained of his low back pain at
the time of separation from active service in 1957 as such a
complaint would have held up his release and he wanted to go
home. The veteran asserted that at the time of his
separation he was personally recruited by his unit commander
to joint the reserves. He did not remember ever receiving an
extensive physical examination during this reserve service.
In his written statements and at his Board hearing in June
2005, the veteran claimed that he had sought private medical
treatment for his chronic low back pain as early as 1958. He
continued to seek private treatment, but the records of this
treatment prior to the early 1970s are not longer available
as the physicians had died and the records were reportedly
destroyed. He acknowledged at his hearing that some of his
physicians have related his current low back problems to his
age.
A private operative report dated in December 2003 indicated
that the veteran underwent L4-L5 level decompression
laminectomies with posterior lumbar interbody fusion,
posterolateral transverse process fusion, pedical screw
fixation, and "Healso/BMA" posterolateral fusion. It was
noted that the veteran had developed spondylolisthesis over
the past three years with worsening back pain. The post-
operative diagnosis was L4-L5 spondylolisthesis with severe
spinal canal stensosis and lateral recess stenosis.
The veteran's VA treating physician prepared a letter in July
2005. It was noted that she had been treating the veteran
since March 2003. He had complained of chronic low back pain
since that time. It was reported that the veteran claimed he
had experienced low back pain for the past 50 years. The
physician commented:
I have reviewed records concerning [the
veteran] from a number of different
physicians, including records dated 1954,
in which it does mention that he was
having low back pain, as well as in 1971.
My understanding is that some records
have been lost, so he cannot document
that he was having pain during that time
either; however, in reviewing the
records, it seems likely that he has been
having back pain for at least fifty
years.
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. New evidence means
existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a). For the
limited purpose of determining whether to reopen a claim, the
credibility of the evidence is to be presumed; however, this
presumption no longer applies in the adjudication that
follows reopening. Justus v. Principi, 3 Vet. App. 510, 513
(1992).
The evidence received since October 1997 includes the
veteran's lay evidence discussing his pre-service back injury
and the fact it did not lead to chronic pain. This evidence
tends to be corroborated by the findings on his entrance
examination in 1953. He has also provided new lay evidence
detailing his private treatment since 1958 for chronic pain,
within one year of his separation from active service.
Finally, the veteran had submitted a medical opinion of July
2005 in which the physician, based on a review of the service
medical records and available post-service records, found
that it was likely that the veteran suffered with chronic low
back pain dating back to his active service period. This
evidence is neither cumulative nor redundant of any evidence
obtained prior to October 1997. In addition, the Board finds
that this evidence, in particular the physician's opinion of
July 2005, relates to a previously unestablished fact,
chronicity. Therefore, the Board finds that the issue of
entitlement to service connection for a low back disability
must be reopened. This matter is further discussed in the
following remand.
ORDER
The application to reopen a claim of entitlement to service
connection for a low back disability is granted.
REMAND
The veteran has testified that he has attempted to locate and
obtain his private treatment record dated prior to the early
1970s. However, he had indicated that these physicians are
now dead and that their records are either missing or
destroyed. Therefore, the Board finds that further
development of his evidence would be futile. See 38 U.S.C.A.
§ 5103A(b); 38 C.F.R. § 3.159(c)(2). However, the veteran
has identified current low back treatment at his local VA
outpatient clinic and from private healthcare professionals.
On remand, these records should be obtained. See 38 U.S.C.A.
§ 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2005); see also
Culver v. Derwinski, 3 Vet. App. 292, 297 (1992) (VA must
obtain all pertinent VA medical records which have been
called to its attention.)
The veteran has presented competent lay evidence of an in-
service low back injury in 1954. The service medical records
report complaints and treatment for low back pain in June
1954. Examination revealed very mild dorsal scoliosis. X-
ray report of June 1954 indicates the possibility of joint
disease at the L5-S1 level. Post-service medical records
note complaints and treatment for low back pain beginning in
the early 1970s. Diagnoses have included strain,
spondylosis, spondylolisthesis, and spinal canal stenosis
affecting the lumbar spine. Based on this evidence, the
Board finds that a VA compensation examination is in order to
determine the etiology of the veteran's current low back
disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4);
see Myers v. Brown, 5 Vet. App. 3, 4-5 (1993); Duenas v.
Principi, 18 Vet. App. 512, 518 (2004) (The duty to assist
requires VA to obtain a medical opinion as to the
relationship between an in-service event, injury, or
symptomatology and a current disability.); Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991) (The Board cannot base
its decisions on its own unsubstantiated medical opinion.)
Under the circumstances, the Board must remand this case for
the following action:
1. The AOJ should contact the veteran
and request that he identify all medical
treatment for his low back disability
since October 1997. He should be
requested to provide the appropriate
signed release forms so that private
treatment records can be obtained. The
AOJ should request all treatment records
identified and, if required, for which
release forms have been received. All
responses and/or evidence received should
be associated with the claims file.
2. The AOJ should request all records of
treatment for the veteran's low back
disability from the VA outpatient clinic
in Eugene, Oregon, dated from October
1997 to the present time. All responses
and/or evidence obtained must be
associated with the claims file.
3. Thereafter, the AOJ should make
arrangements with the appropriate VA
medical facility for the veteran to be
afforded a VA orthopedic examination to
determine the existence and etiology of
his current low back disability. The
claims file must be made available to and
reviewed by the examiner. Any further
indicated special studies must be
conducted. The examiner should be
provided the following instructions:
The veteran has claimed that his current
low back disability was incurred from an
in-service injury when a 55-gallon barrel
rolled over his back in 1954. He claims
that he had experienced chronic low back
pain since that time that has become
progressively worse and made him
susceptible to further low back injury.
The examiner should provide answers to
the following questions:
What is the most accurate low back
diagnosis? Is any current low back
disability in anyway related to the
veteran's active service, including
the in-service X-ray finding? If
so, please explain.
Is it at least as likely as not that
any current low back disability was
caused by, or incurred in, his
active service, specifically the
injury reported in 1954?
If upon completion of the above action the claim remains
denied, the case should be returned after compliance with
appellate procedure. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until VA notifies him; however, the
veteran is hereby notified that failure to report for a
scheduled VA examination without good cause shown may
adversely affect the outcome of his claim. See 38 C.F.R.
§ 3.655. The veteran has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs